Common in the medical profession is the process known as clinical peer review, by which physicians evaluate each other’s performance.[1] In hospitals, peer review or quality-assurance committees regularly meet to review adverse patient safety events, near-misses, patient complaints, lawsuits and to comply with regulatory requirements, including accreditation, licensure, and Medicare participation. These meetings ensure that standards of care are maintained, generate process improvement measures to minimize or eliminate healthcare errors and improve quality of care.

In New York, the proceedings and records relating to quality-assurance review or peer review committee meetings are privileged and protected from disclosure (“quality-assurance privilege”).[2] However, there is an exception to this privilege. Statements made by a party to a medical malpractice lawsuit in a quality control meeting where the treatment was reviewed are not entitled to protection. They thus are discoverable (“party-statement exception”). Basically, the privilege is not intended to protect those whose conduct is under review that led to the alleged malpractice.

As is typical, the party asserting the privilege must establish a right to the protection of the privilege.

In a recent decision, Siegel v. Snyder, ___ AD3d ___, 2021 NY Slip Op 07264, the Second Department was presented with a discovery issue in a medical malpractice case where the plaintiff sought discovery of certain statements made during the peer review committee meeting held on the treatment at issue under the party-statement exception. Two of the defendants were present at the meeting. But the peer review committee’s meeting minutes did not identify the speaker of certain statements made on the subject.

Defendants argued that the party-statement exception is automatically inapplicable when the meeting’s minutes do not identify the speaker because it cannot be determined whether the speaker is a party or non-party.[3] The appellate court disagreed with this argument.

The court held that the defendants failed to prove that the statements were made by a non-party. Accordingly, the court determined that statements in the defendant hospital’s peer review committee meeting minutes attributed to the “committee,” or where the speaker was not identified, were not entitled to the quality-assurance privilege afforded by the laws as it could not be determined whether those statements were made by a non-party.[4]

At Yoars Law, we have decades of experience representing plaintiffs and defendants in medical malpractice cases. As a result, we can provide a litigation plan tailored to our client’s needs and role in their case to ensure the best possible outcome.

[1] See Edwards MT, Benjamin EM (2009). “The process of peer review in US hospitals.” Journal of Clinical Outcomes Management. 16 (10): 461–467.

[2] Education Law § 6527(3); Public Health Law § 2805-m(2).

[3] Siegel v Snyder, ___AD3d___, 2021 NY Slip Op 07264, *1. Full text of the Court’s opinion can be found here.

[4] Siegel v Snyder, ___AD3d___, 2021 NY Slip Op 07264, *1-2.

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